7 May 2024
Abby Wallace, a paralegal in the Clinical Negligence department considers the role of medical records in a clinical negligence case
To have a successful clinical negligence claim, the claimant must be able to demonstrate that there has been a breach of duty (that the treatment or care they have received fell below a reasonable standard) and that there was a causative link (injury or harm caused by the breach of duty).
To assess a claim a review of the medical records is undertaken. In most cases we will require a medical expert’s opinion to comment on the care received so they will review the records and consider (within their field of expertise) if there has been a breach of duty. Where appropriate, they may also comment on causation.
Whilst the contents of the records are important in assessing a claim, at trial the court will also consider the claimant’s account.
HTR v Nottingham University Hospitals NHS Trust (2021)
The case of HTR v Nottingham University Hospitals NHS Trust (2021) looked at the balance of consideration given to the medical records and the claimant’s version of events.
In this case, the claimant brought a claim for alleged negligence at an antenatal clinic appointment on 6th October 2004. The claimant was born four days later by emergency caesarean section having suffered permanent damage from chronic partial hypoxia which resulted in asymmetric quadriplegic cerebral palsy.
The claimant’s mother had been referred by her community midwife to the antenatal clinic due to concerns that the baby was in a breech position (i.e. lying feet first in the uterus). The claimant alleged that she had attended the clinic and reported concern including reduced foetal movements. An ultrasound scan was performed and indicated that the baby was not in the breech position and was ready to be born which would explain the lack of movement.
The defendant denied that the claimant’s mother had reported concerns of foetal movement at the appointment and that the clinician who had allegedly carried out the scan had not done so. They had reviewed the claimant’s mother following the scan and noted active foetal movement in the records. The defendant alleged that had reduced foetal movement been reported, it would have been noted and further investigations would have taken place, and it was acknowledged that had this not happened, it would have been a breach of duty.
As there was a conflict between the medical records and the claimant’s version of events, the court had to give consideration as to the weight each would bear in assessing the claim. The defendant claimed that the clinician in question had no recollection of the clinic appointment (seventeen years had passed until the first day of trial) and that the court should place considerable reliance on the contents of the medical records in determining whether there had been a breach of duty rather than considering the claimant’s recollection.
The evidence considered in the case consisted of three expert reports, two of which were compiled by obstetricians (one for both the claimant and the defendant) and one by a neurologist (which was not relevant to the issue being determined by the court). The evidence also consisted of oral evidence presented by the claimant’s mother, her husband and her mother and the relevant clinician along with other clinicians for the defendant.
In considering the evidence, the reliability of medical records was considered by noting some key previous cases, where courts were of the opinion that medical records are ordinarily likely to be reliable due to their nature and that the starting point is that an entry made by a medical professional is likely to be a correct and an accurate record of what was said and done at the time, so there is a presumption that the medical record will be an accurate picture of what happened.
The judge concluded that the claimant did raise their concerns regarding reduced foetal movement and therefore the absence of any further investigation was a breach of duty. The reasoning for this was that the records although noting active foetal movement at the appointment did not refer to any concerns addressed or the lack thereof and the opinion of the judge that the relevant clinician’s recollection had been affected by her following years of practice and the presence of greater emphasis placed on reduced foetal movements only since 2011.
Medical records are not the only evidence that will be relied upon in a claim, particularly where the claimant’s recollection conflicts with the records and clinician’s recollection. However, the judge did consider all of the evidence carefully and it is not to say that the courts will be eager to side with a claimant’s recollection over the contents of the medical records in every case. Each case is therefore determined on its own facts and available evidence.
